Sumitra Bai and another vs Shyam Lal Sen and others

Abhay M. Naik, J.

This miscellaneous appeal has been preferred against the order dated 24-2-2005 passed by the Court of District Judge, Raisen in Miscellaneous Civil Appeal No, 14/2004, Sumitra Bai vs. Shyamlal and another rejecting thereby an application of appellants under Order 9, Rule 13, CPC for setting aside ex parte award dated 2-12-2003 passed by M.A.C.T, Raisen in Claim Case No. 82/2002.

Case of the appellants is that a claim petition was submitted against the present-appellants by the respondents under Motor Vehicles Act, 1988. This claim was decreed ex parte on 2-12-2003.

During the execution proceedings, the applicant came to know about the ex parte award during the proceedings of attachment pursuant to the execution of the award. Appellants obtained certified copy of the ex parte award and thereafter within a month submitted an application for setting it aside.

Shri Ashok Chakrabarti, learned counsel contended that no notice of the claim case was served upon the appellants. Instead, the notice was served on Jaswant who happens to be the son of appellant No. 2 and son of the daughter of appellant No. 1. Jaswant was a teacher at Raisen whereas the appellants were residing at village Banchhod, District Raisen. According to the appellants'' learned counsel, Jaswant was not residing with the appellants, therefore, service on him of the notice addressed to the appellants is not valid. Thus, service on Jaswant could not have been treated as valid service on appellants and no ex parte decree could have been passed on the basis of such service.

Order 5, Rule 15, CPC provides :-

Where service may be on an adult member of defendant''s family - Where in any suit the defendant is absent from his residence at the time when the service of summons is sought to be effected on him at his residence and there is no likelihood of his being found at the residence within a reasonable time and he has no agent empowered to accept service of the summons on his behalf, service may be made on any adult member of the family, whether male or female, who is residing with him.

Appellant No. 2 examined herself before the trial Court. She stated on oath that both the appellants were residing jointly at village Banchhod, District Raisen whereas Jaswant was residing in a different house at district Raisen since, he was holding the post of teacher at district Raisen. Thus, it is a clear case of the appellants that they were residing separately from Jaswant and Jaswant cannot be treated as a person residing with the appellants for the purpose of Rule 15 of Order 5 of Civil Procedure Code.

I have perused the statement of appellant No. 2 as well as Ramesh who was examined by plaintiffs/respondents. Appellant No. 2 has categorically stated on oath that Jaswant was residing with his wife at district Raisen whereas the appellants were residing at village Banchhod. Ramesh, the Process Server has also expressly stated that he had gone to the house of appellants to serve them with the notice. They were not present. On the contrary, it was found that Jaswant was residing at Raisen. Thereafter, the Process Server went to Raisen and served Jaswant with the notice of claim case.

From the aforesaid and other material on record, it is clear that Jaswant was residing separately with his family whereas the appellants were residing at village Banchhod separately.

Order 5, Rule 15, CPC provides that the service may be effected on any adult member of the family who is residing with the addressee. Words "who is residing with him" are quite significant. An adult member of the family while being served with the notice/summons must be residing with the addressee. In the present case it is amply clear from the record that Jaswant was residing separately whereas the appellants were residing at village Banchhod independently Process Server, on not finding Sumitra Bai at her residence mentioned in the notice went to District Raisen at the residence of her son jaswant and served upon him the notice. Thus, Jaswant is found to have resided separately and not with Sumitra Bai at the time of service of notice. Process Server was not empowered under Order 15, Rule 5, CPC to serve the notice of Sumitra Bai even on her major son who was not residing with her. In view of this, compliance of Rule 15 does not appear to have been made while effecting service of the notices meant for appellants. This being so, the service of notice on Jaswant was not liable to be taken into consideration as service on appellants. Thus, the service on Jaswant is found to be invalid within the meaning of Order 5, Rule 15, Civil Procedure Code. It is further found that in view of absence of service on appellants, there was sufficient cause for their absence at the time of proceedings against them in ex parte manner.

Accordingly, the impugned order is not sustainable in law and is hereby set aside. Ex parte award dated 2-12-2003 passed by M.A.C.T., Raisen is hereby set aside. Learned M.A.C.T., Raisen is directed to decide the claim case on merits in accordance with law.